Adapting the ordre public and morality exclusion of European patent law to accommodate emerging technologies

Pila, Justine

doi:10.1038/s41587-020-0504-5

Cited by 6 publications

(5 citation statements)

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“…Peifer et al ( 2020 ) examine the relationships between scientists’ moral values and their perception of market as either civilizing or destructive, focusing on patents as an example of “contested commodity” that could be evaluated differently in terms of their general impact on society. The enactment of patent law, in this sense, is of ambivalent nature (Pila 2020 ): some would argue that the commercialization of scientific knowledge, especially that related to medicine, is essentially immoral, while others think that the market logic of profit-making allows concentrating large recourses for facilitating the spread of new technologies, which, in turn, benefits the entire society, although in an indirect way. Considering this issue from the scientists’ perspective, the authors found that those professional biologists and physicists who share the value of universalism (Schwartz 2007 ) tend to support the idea of the market as a “destructive” force by demonstrating anti-patenting attitudes.…”

Section: Contributions To the Thematic Symposiummentioning

confidence: 99%

Opening Constructive Dialogues Between Business Ethics Research and the Sociology of Morality: Introduction to the Thematic Symposium

2020

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Over the last decade, scholars across the wide spectrum of the discipline of sociology have started to reengage with questions on morality and moral phenomena. The continued wave of research in this field, which has come to be known as the new sociology of morality, is a lively research program that has several common grounds with scholarship in the field of business ethics. The aim of this thematic symposium is to open constructive dialogues between these two areas of study. In this introductory essay, we briefly present the project of the new sociology of morality and discuss its relevance for business ethics. We also review the contributions to this thematic symposium and identify four specific domains where future research can contribute to fruitful dialogues between the two fields. Keywords Business ethics • Context • Morality • New sociology of morality • Sociology Moral phenomena-i.e. those related to evaluations of actions, actors, norms, and practices as right or wrong, good or bad, desirable or undesirable-constitute the primary sphere of interest for many disciplines and fields within cognitive, behavioral, and social sciences. While the most general explanations of human moral capacity are usually

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Section: Contributions To the Thematic Symposiummentioning

confidence: 99%

Opening Constructive Dialogues Between Business Ethics Research and the Sociology of Morality: Introduction to the Thematic Symposium

2020

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“…Of course, there will be difficulties and challenges here-and with any proposal that seeks to revise TRIPS-we do not attempt to address such issues here. 8 It is worth noting how our proposal should respond to some concerns recently raised by Justine Pila in two papers offering alternative proposals for the regulation of the patenting and licensing of emerging technologies (Pila 2020a;Pila 2020b). In the first paper, Pila argues that the approach of the European Patent Office (EPO) to the interpretation of the morality clause [Article 53(a)] of the European Patent Convention) is "incoherent, unduly restrictive and blind to the regulatory challenges presented by emerging technologies" and that the risk assessment of that clause "necessitates an epistemic and deliberative process aimed at recognizing and confronting the uncertain consequences of new technologies and their implications for society."…”

Section: Discussionmentioning

confidence: 99%

“…In the first paper, Pila argues that the approach of the European Patent Office (EPO) to the interpretation of the morality clause [Article 53(a)] of the European Patent Convention) is "incoherent, unduly restrictive and blind to the regulatory challenges presented by emerging technologies" and that the risk assessment of that clause "necessitates an epistemic and deliberative process aimed at recognizing and confronting the uncertain consequences of new technologies and their implications for society." (Pila, 2020a), 535-6. To do this, she argues, the EPO and the domestic patent offices should introduce a version of the risk assessment model proposed in a brief prepared by the University of the West of England in 2017 for the European Commission and create a "morality and public policy triage system" within those patent offices, i.e.…”

Section: Discussionmentioning

confidence: 99%

Ethics, Patents and Genome Editing: A Critical Assessment of Three Options of Technology Governance

2021

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Current methods of genome editing have been steadily realising the once remote possibilities of making effective and realistic genetic changes to humans, animals and plants. To underpin this, only 6 years passed between Charpentier and Doudna’s 2012 CRISPR-Cas9 paper and the first confirmed (more or less) case of gene-edited humans. While the traditional legislative and regulatory approach of governments and international bodies is evolving, there is still considerable divergence, unevenness and lack of clarity. However, alongside the technical progress, innovation has also been taking place in terms of ethical guidance from the field of patenting. The rise of so-called “ethical licensing” is one such innovation, where patent holders’ control over genome editing techniques, such as CRISPR, creates a form of private governance over possible uses of gene-editing through ethical constraints built into their licensing agreements. While there are some immediately apparent advantages (epistemic, speed, flexibility, global reach, court enforced), this route seems problematic for, at least, three important reasons: 1) lack of democratic legitimacy/procedural justice, 2) voluntariness, wider/global coordination, and sustainability/stability challenges and 3) potential motivational effects/problems. Unless these three concerns are addressed, it is not clear if this route is an improvement on the longer, slower traditional regulatory route (despite the aforementioned problems). Some of these concerns seem potentially addressed by another emerging patent-based approach. Parthasarathy proposes government-driven regulation using the patent system, which, she argues, has more transparency and legitimacy than the ethical licensing approach. This proposal includes the formation of an advisory committee that would guide this government-driven approach in terms of deciding when to exert control over gene editing patents. There seem to be some apparent advantages with this approach (over traditional regulation and over the ethical licensing approach mentioned above—speed and stability being central, as well as increased democratic legitimacy). However, problems also arise—such as a “half-way house” of global democratic legitimacy that may not be legitimate enough whilst still compromising speed of decision-making under the “ethical licensing” approach). This paper seeks to highlight the various advantages and disadvantages of the three main regulatory options—traditional regulation, ethical licensing and Parthasarathy’s approach—before suggesting an important, yet realistically achievable, amendment of TRIPS and an alternative proposal of a WTO ethics advisory committee.

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“…Before being employed in connection with human rights (De Beco, 2009) or promoted for mitigating risks associated with AI (Kaminski & Malgieri, 2020;Mantelero, 2018;Raji et al, 2020;Wieringa, 2020) or other emergent, potentially patentable technologies (Pila, 2020), impact assessments have been used decades to identify large undertakings' social and environmental impacts (See Burdge, 1991;Vanclay, 2003;Esteves et al, 2012). Environmental Impact Statements were first required by the US in the National Environmental Policy Act (NEPA) of 1969.…”

Section: The Diversity Of Impact Assessment Modelsmentioning

confidence: 99%

Impact Assessment as a Legal Design Pattern—A “Timeless Way” of Managing Future Risks?

Wernick

2024

DISO

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Impact assessments are increasingly employed and debated as instruments for mitigating the fundamental rights risks associated with artificial intelligence, platforms and personal data processing. However, before their adoption in connection with technology and fundamental rights, impact assessments have been used for decades to mitigate large undertakings’ environmental and social impacts. An impact assessment is a process for collecting information to identify a future action’s effects and mitigate its unwanted effects. This article proposes that impact assessments represent a distinct legal design pattern with core elements that can be replicated in new legal contexts requiring ex-ante identification and mitigation of foreseeable risks. The tensions between diverging interests, temporality, epistemics and economics characterise this legal design pattern. The impact assessment process seeks to resolve these tensions by enabling translation between the regulator, the executor of the planned action and the stakeholders impacted by it. Awareness of the underlying patterns allows the lawmaker or the regulator to learn across diverse impact assessment models. Design pattern thinking advances research both on law and regulation by uncovering the tensions underling the design solution, as well as pattern interaction between legally mandated impact assessments and those representing other regulatory instruments. Finally, the approach raises awareness of the instrument’s shortcomings, including spheres where relying on complementary legal design patterns, such as precautionary principle, is more justified.

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Adapting the ordre public and morality exclusion of European patent law to accommodate emerging technologies

Cited by 6 publications

References 5 publications

Opening Constructive Dialogues Between Business Ethics Research and the Sociology of Morality: Introduction to the Thematic Symposium

Opening Constructive Dialogues Between Business Ethics Research and the Sociology of Morality: Introduction to the Thematic Symposium

Ethics, Patents and Genome Editing: A Critical Assessment of Three Options of Technology Governance

Impact Assessment as a Legal Design Pattern—A “Timeless Way” of Managing Future Risks?

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